G.S. Lal, J.
1. This second appeal has arisen out of a suit for cancellation of a sale deed dated 21-6-1958 executed by appellant No. 2 Smt. Bhagwan Dei in favour of appellant No. 1 Jagdish Prasad for a sum of Rs. 1200 in respect of a shop situated in the city of Hardoi. The suit was instituted by the present respondent Girja Shankar on the ground that under a will of the original owner Ram Prasad of the shop in suit, Smt. Bhagwan Dei was given only the right of possession for her life whereafter the shop was to pass on to him (Girja Shankar) and Smt. Bhagwan Dei had no transferable interest in the shop. The sale deed was, therefore, said to be invalid and unauthorised.
2. The following short pedigree is undisputed and will be found of use :--
Ram Prasad Raghubar Dayal
(died issueless) |
Uma Dutt Bhagwan Def
(died issueless) Appellant NO. 2
Uma Dutt had two wives and one ot them was sister of plaintiff-respondent Girja Shankar.
3. The defence of Jagdish Prasad in the suit was that the shop had been given to Smt. Bhagwan Dei by Ram Prasad in Kanyadan at the time of her marriage and she was. therefore, its owner and that in any case she had become its owner by reason of adverse possession for more than 12 years. It was also pleaded that in any case the sale deed could not be cancelled during the lifetime of Smt. Bhagwan Dei and that it was executed for legal necessity.
4. The case of Smt. Bhagwan Dei herself in defence was that the shop was given to her in kanyadan with the consent of Ram Prasad and she had in any case perfected her title by adverse possession. It was denied that Ram Prasad had executed any will or any right had accrued to the plaintiff by reason of any such will. Ram Prasad was said to have been suffering from a number of diseases at the time of his death and had not full consciousness of Ms actions. It was also given out that the alleged will did not cover the shop in suit. The learned Munsif who tried the suit dismissed it holding that Ram Prasad was not the owner of the shop nor he executed any will in respect of the shop in suit. He also held that Ram Prasad was not of sound disposing mind at the time of the alleged execution of the will. Smt. Bhagwan Dei was held to be absolute owner of the shop and the Sale in favour of Jagdish Prasad was upheld on that ground. On appeal it was held by the Civil Judge who heard it that Ram Prasad was the owner of the shop and had validly executed the will in question about it. Smt. Bhagwan Dei possessed only life interest under the will and had no right to transfer the shop to Jagdish Prasad. He therefore, decreed the suit in the appeal.
5. The appellants have in this Court reiterated the case taken by them in the trial court. It has been particularly contended on their side that the alleged will was not proved as the secondary evidence produced could not be admitted in the absence of proof of the loss of the original and that neither due execution nor sound disposing mind of the testator have been proved. The appellate court is said not to have given any finding at all on the question of the sound disposing mind of the testator.
6. The finding by the learned Civil Judge that the shop belonged to Ram Prasad is a finding of fact and is ordinarily not open to review in second appeal. However from the pleading of the appellants themselves it would appear that upto the time their written statements were filed there was no case other than thatthe shop belonged to Ram Prasad upto the time of the marriage of appellant no. 2. There was no case that Ram Prasad and his nephew Uma Dutt had separated and were not members of a joint Hindu family. So even if the shop belonged to the family of Ram Prasad and Uma Dutt it became the sole property of Ram Prasad on the death, in his lifetime, of Uma Dutt, unless of course the case of Sanka'lap is found proved.
7. The case of Sankalap of the shop to Smt. Bhagwan Dei at the time of her marriage could not be substantiated. Moreover no gift of immoveable property could be made validly except by means of a written and registered instrument. The case of adverse possession could have any substance only if it were proved that there was even factually a Sankalp on account of which Smt. Bhagwan Dei possessed the shop for over 12 years claiming to be full owner. Accordingly, if there was a will executed by Ram Prasad the possession of Smt. Bhagwan Dei must be related to that will; of course if no will is found to be proved then the respondent would be nonsuited as having no right to sue and it would be immaterial in what capacity Smt. Bhagwan Dei possessed the shop. It would thus appear that the fate of the suit rests upon a decision about the execution and validity of the will and of course also on the decision whether the will covers the shop in suit or not.
8. The alleged will was a registered document of which a certified copy was filed on the record. Witnesses have been examined to prove that the will was executed by Ram Prasad and properly attested. If secondary evidence is found admissible the execution of the will would have to be taken to be duly proved. Secondary evidence would be admissible only if loss of the original is proved. It may be noted that the will is of the date 22-2-1929. On the respondent's side it is said that the respondent himself proved the loss of the original will. The statement of witnesses was recorded by the Reader of the Court on the dictation of the Presiding Officer and there is, therefore, only a Single record of the evidence. Girja Shankar stated that he possessed the will executed by Ram Prasad. Thereafter occur the words:
'Magar maine report ki thee. Maine uski nakal lekar dakhil kee hai.'
Obviously the first Sentence in the quoted words will have no meaning just after the statement that the will was in the possession of the dependent. It appears that some' part of the statement of the witness was omitted from being written after the word 'Magar'. He must have stated some such words as 'Magar vokho gaya hai' before stating 'Maine report kee thi'. The court would not have allowed secondary evidence to be given if Girja Shankar had not made statement about the loss of original will and the appellant's counsel also would not have allowed secondary evidence to be led. It is. therefore, not possible to hold that the loss of the original was not proved so secondary evidence of the will is admissible.
9. The next point to be considered is whether Ram Prasad was in sound state of mind for the purpose of making a will in respect of his property. Ram Pra-sari was about 89 years of age at the time of execution of the will. He was admittedly not keeping good health which is not surprising but whether the state of his mind was such that he could not have executed the will with full consciousness of the nature of his act is a different matter.
10. It has been urged on the side oi the respondent that the questions whether a man at the time of making his will has testamentary capacity and whether the will was the result of his own wish and act, or was procured from him by means of fraud or undue influence, are pure questions of fact. Reliance is placed on the Privy Council decision. William Robins v. National Trust Co. Ltd. AIR 1927 P. C 66, but in this particular case I find that the learned Civil Judge did not go beyond the finding that the will was duly executed and attested. That means that there is no finding by him on the question whether Ram Prasad had testamentary capacity and the will was the result of his own act and wish. This matler is, therefore, one which can be raised in second appeal. It is not necessary to remit the case to the lower appellate court for a finding and the matter can be easily disposed of in this court.
11. There is no doubt that in the cast of a will the proof thereof for the purpose of acting upon it does not end with merely proving its execution by the person by whom it purports to have been executed and due attestation. The Court will also have to see that the will was the last testamentary disposition of the testator and was executed by him with sound mental condition and of his own free will. Here there is nobody's case that any will was executed at a subsequent date. The onus of proof for the rest is in general discharged by proof of capacity and the fact of execution from which knowledge of and assent to its contents by the testator will be assumed. But if a will is executed under the circumstances which excite the suspicion of the court, the person propounding the will will have further to remove such suspicion and to prove affirmatively thatthe testator knew and approved of the contents of the will. See in this connection H. Venkatachala lyengar v. B. N. Thimmajamma : AIR1959SC443 , Rani Purnima Debi v. Kumar Khagendra Narayan Deb, : 3SCR195 and Khubbawa v. Tammaji Krishnaji Jadav, S. C. C. A. No. 399 of 1964, D/- 7-4-1966 (SC), and noted at item No. 224 in 1966 SC Notes at p. 186,
In the instant case it is alleged that Ram Prasad was very old and ill that the respondent was present at the time of the execution of the will, and the will confers benefits on him; and also that Ram Prasad ignored his own wife in disposing of his property by will. So far as the last point is concerned it does not He in the mouth of the appellants to press it when there is the clear statement of their own witnesses that Ram Prasad's wife was dead before he made the will. It is not material if some witnesses of the respondent had stated that she was alive. The mere presence of the respondent at the time of the execution of the will and the fact that benefit was conferred on him as well are no circumstances which by themselves can lead to any inference that the respondent got the will executed under undue influence.
It is noteworthy that the property was at first given by Ram Prasad to Bhag-wan Dei appellant No. 2 for her lifetime and it was only thereafter that the property was to pass to the respondent. In 1929 when the will was executed appellant No. 2 was a young lady if the respondent had really any domination over the will of Ram Prasad he would have straightway got the will executed in his own favour The fact that under the will absolute rights do not appear to have been conferred even on the respondent is again a circumstance suggesting that the will could not have been the result of the exercise of any undue influence by the respondent over Ram Prasad. For a positive case of undue influence the onus of proof rested on the appellants and they have wholly failed to prove it as the circumstances relied upon by them do not establish undue influence The circumstances considered upto this time also do not create any doubt about the fact of the will having been executed by Ram Prasad of his own wish. As regards the fact of illness of Ram Prasad or his old age, there is no positive evidence that he was not in the sound mental condition so as to understand the nature of his act. Further, old age does not necessarily imply loss of faculty of understanding one's own property affairs.
Even illness can also not affect the mental capacity of a person. The two witnesses examined on the side of the respondenthave clearly testified about the sound mental condition of Ram Prasad and their evidence has not been refuted by any positive evidence to the contrary. On the other hand the fact that the will was got registered is indicative of its genuineness. If Ram Prasad was not in proper mental state and someone else was instrumental in having the will prepared and signed by Ram Prasad it was very unlikely that he would have taken the risk of exposing defective mental state of Ram Prasad before the registering authority when it was not necessary to have the will registered. In view of the above there is no reason to think that there are any suspicious circumstances and, in any case, the evidence sufficiently establishes that Ram Prasad was in proper state of mind and executed the will with full consciousness of the nature of his act.
12. Another point for consideration is whether the shop in suit is included in the will. It is not specifically included but the will covers the entire property of the testator and the shop would, therefore, also be covered by it after the finding that it belonged to Ram Prasad at the time of the execution of the will.
13. The last point requiring consideration is whether in any case the sale deed cannot be cancelled during the lifetime of Smt. Bhagwan Dei appellant No 2. The answer to this question is to be found from the terms of the will Under the will appellant No. 2 was to get the entire property of the testator except the right to act as priest of the testator's customers, but without any right of transfer. It was not said simpliciter that the lady would be the owner of the property for her lifetime but the condition was imposed that she would have no right to transfer The plaintiff-respondent has, therefore the right to have the sale deed cancelled though of course he cannot recover possession of the suit property during the lifetime of appellant No. 2, nor can he prevent the use of the shop by appellant No. 1 during the lifetime of appellant No 2 if the latter so permits.
14. In the result the appeal is dismissed with costs.